Bombay High Court
Kamlu Mahadu Bhande vs The State Of Maharashtra on 2 December, 2016
Bench: V.K. Tahilramani
2. cri apeal 1366-2011 (j).doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1366 OF 2011
Kamlu Mahadu Bhande
Age 35 Years, Occ. : Agriculture,
Residing at Gondhalyachi Manivali,
Taluka Murbad, Dist. Thane.
Presently in Judicial Custody at Kolhapur
Central Prison. .. Appellant
(Org. Accused)
Versus
The State of Maharashtra
(At the instance of Murbad Police Station) .. Respondent
...................
Appearances
Mr. N.V. Jadhav Advocate for the Appellant
Mr. H.J. Dedia APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
A.M. BADAR, JJ.
DATE : DECEMBER 2, 2016.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant - convicted
accused against the judgment and order dated 16.08.2011
passed by the learned Additional Sessions Judge, Kalyan in
Sessions Case No. 235 of 2008. By the said judgment and
order, the learned Session Judge convicted the appellant for
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the offence punishable under Section 302 of IPC and
sentenced him to suffer rigorous imprisonment for life and
fine of Rs. 1000/-, in default R.I. for two months.
2. The prosecution case briefly stated, is as under:
(a) Deceased Kamal was the wife of the appellant.
They were residing in Village Gondhalyachi
Manivali in District Thane. The complainant PW 2
Sunanda was residing near the house of the
appellant and the deceased. The appellant was
addicted to drinking liquor.
(b) The incident took place on 20.6.2008. On that
day at about noon, Sunanda heard noise of shouts
from the house of the appellant. The shouts were
of the appellant and his wife Kamal. Sunanda
neglected the shouts as the appellant and his wife
used to quarrel frequently.
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(c) At about 5.30 p.m., one Fasabai, the mother of
Police Patil, came to the house of Sunanda and
told Sunanda that she had not seen Kamal.
Fasabai further told that there was shouting,
however, they did not go to the house of the
appellant and Kamal and she told Sunanda to go
to the house of Kamal. They went to the house of
Kamal.
The appellant was in the house. The
appellant saw Sunanda and Fasabai. He came out
of the house and started to run away. There was
something in his armpit. When they entered the
house, they saw Kamal lying dead with bleeding
injury on her head. Sunanda then lodged F.I.R.
Exh. 10. The dead body of Kamal was sent for
postmortem. After completion of investigation,
the charge sheet came to be filed.
3. Charge came to be framed against the appellant under
Section 302 of IPC. The appellant pleaded not guilty to the
said charge and claimed to be tried. His defence was that of
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total denial and false implication. After going through the
evidence adduced in this case, the learned Sessions Judge
convicted and sentenced the appellant as stated in
paragraph 1 above, hence, this appeal preferred by the
appellant against his conviction and sentence.
4. We have heard the learned Advocate for the appellant
and the learned APP for the State. After giving our anxious
consideration to the facts and circumstances of the case,
arguments advanced by the learned Advocates for the
parties, the judgment delivered by the learned Sessions
Judge and the evidence on record, for the reasons stated
below, we are of the opinion that the appellant assaulted his
wife Kamal and caused her death.
5. The conviction of the appellant is mainly based on the
evidence of PW 2 Sunanda. Sunanda has stated that she
was residing in Village Gondhalyachi Manivali. The house of
the appellant and the deceased was situated near her house,
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hence, she knew them. The appellant was in habit of
consuming liquor. Sunanda has further stated that on the
date of the incident, she was in her house. At about noon,
she heard noise of shouts from the house of the appellant.
The shouts were of the appellant and his wife Kamal.
Sunanda neglected the shouts as the appellant and his wife
used to quarrel frequently. Sunanda further stated that at
about 5.30 p.m., one Fasabai, the mother of Police Patil,
came to the house of Sunanda and told Sunanda that she
had not seen Kamal. Fasabai further told that there was
shouting, however, they did not go to the house of the
appellant and Kamal and she told Sunanda to go to the
house of Kamal. They went to the house of Kamal. The
appellant was in the house. The appellant saw Sunanda and
Fasabai. He came out of the house and started to run away.
There was something in his armpit. When they entered the
house, they saw Kamal lying dead with bleeding injury on her
head. Sunanda then lodged F.I.R. Exh. 10. Nothing has been
elicited in cross-examination of Sunanda so as to cause us to
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disbelieve her evidence.
6. The medical evidence shows that it was a case of
homicidal death. PW 1 Dr. Bansode conducted the
postmortem on the dead body of Kamal. He found 19
injuries on her person which are mentioned on the separate
sheet to the postmortem notes Exh. 8. Dr. Bansode has
stated about the major injuries which are haemotoma under
scalp at right fronto parietal temporal region 12 x 6 c.m.
There was fracture at the base of skull linear transverse in
direction C shape 4 c.m. in length. There was sub-dural
hemorrhage with haemotoma on parietal region of 25 c.c.
blood with blood clots. Brain matter pale. There was
fracture of 5th, 6th and 7th ribs bilateral anteriorly. There
was 500 ml liquid blood in the abdominal cavity. The liver
was ruptured. According to Dr. Bansode, the cause of death
was shock due to head injury and injury to vital organs.
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7. We have already discussed above the evidence of PW 2
Sunanda, the complainant. Her evidence shows that about
noon, she heard shouts of the appellant and the deceased
from their house. Thereafter at 5.30 p.m., she went to the
house of the appellant. The appellant saw them and started
running away. On looking into the house, they saw Kamal,
the wife of the appellant was lying dead in the house with
injuries on her person which were bleeding injuries. In this
connection, we may refer to Section 106 of the Evidence
Act. Section 106 of the Evidence Act provides that when any
fact is especially within the knowledge of any person, the
burden of proving that fact is upon him. In several recent
decisions, the Supreme Court has held that the principle
which underlies Section 106 of the Evidence Act can be
applied in similar cases. In the case of State of
Rajasthan Vs. Kashi Ram1, the Supreme Court has
observed that if the accused fails to offer an explanation on
the basis of facts within his special knowledge, he fails to
discharge the burden cast upon him by Section 106 of the
1 (2006)12 SCC 254 : AIR 2007 SC 144
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Evidence Act. In a case resting on circumstantial evidence if
the accused fails to offer a reasonable explanation in
discharge of the burden placed on him, that itself provides
an additional link in the chain of circumstances proved
against him. Section 106 does not shift the burden of proof
in a criminal trial, which is always upon the prosecution. It
lays down the rule that when the accused does not throw
any light upon facts which are specially within his knowledge
and which could not support any theory or hypothesis
compatible with his innocence, the Court can consider his
failure to adduce any explanation as an additional link which
completes the chain.
8. The conduct of the appellant is also to be noted. On
seeing Sunanda, the appellant started to run away from his
house. It is to be noted that the inquest panchnama Exh. 12
is admitted by the defence under Section 294 of Cr.P.C. The
inquest panchnama clearly shows that the dead body of
Kamal was found lying in the house of the appellant.
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Moreover, there is no suggestion to PW 2 Sunanda that the
dead body of Kamal was not found in the house of the
appellant and the appellant on seeing Sunanda did not run
away from his house. The appellant and the deceased were
the only persons in the house, however, the appellant has
not furnished any explanation for large number of injuries on
the dead body of Kamal or in relation to the death of Kamal
in their house.
9. Learned counsel for the appellant placed reliance on
the decision of the Supreme Court in the case of Toran
Singh Vs. State of Madhya Pradesh 2 . He pointed out
that in the said case, the weapon was not produced before
the Court and the doctor did not confirm that the injuries
found on the deceased would be caused by the weapon
alleged by the prosecution. He submitted that in such case,
the accused came to be acquitted. However, on going
through the said decision, we find that the accused was not
acquitted only on that ground but in addition, it is seen that
2 AIR 2002 SUPREME COURT 2807
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the motive was not proved by the prosecution. The only eye
witness who was an interested witness did not try to rescue
his father. Moreover, the appellant had only one hand as the
other hand was mutilated. The evidence of eye witness did
not corroborate the other witnesses. There was material
contradictions and omissions in the statement of the
witnesses, serious infirmities and improbabilities giving rise
to grave doubts as to involvement of the accused. It is in all
these circumstances that the accused therein came to be
acquitted. Such are not the facts in the present case, hence,
this decision is not applicable to the present case.
10. Thereafter, learned counsel for the appellant placed
reliance on the decision of this Court in the case of Mahesh
Jayavantrao Aher Vs. State of Maharashtra reported in
2009 ALL MR (Cri) 2623 3. Learned counsel for the
appellant pointed out that in the said case, on the night prior
to the incident, the accused and his father were alone at
home. The next day the sister of the deceased came and
3 2009 ALL MR (Cri) 2623
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after noticing that front door was locked, went to rear door
and called the accused. The accused opened the door and
came out. The sister, on entering the house, noticed the
dead body lying in pool of blood with several injuries.
Learned counsel for the appellant submitted that there was
no panchnama about arrest or seizure of the clothes of the
accused, hence, the accused came to be acquitted in the
case of Mahesh Aher.
ig We cannot say that the facts are
similar to that in the present case because in the present
case, the appellant and the deceased were heard quarreling
at noon time by PW 2 Sunanda who is not an interested
witness. She is an independent witness. At 5.30 p.m., the
deceased was found dead in the house and the appellant
was seen trying to run away. In the case of Mahesh Aher
(supra), the statement of the sister, who has stated that the
appellant opened the door of the house and on entering the
house, she noticed her brother lying dead, was recorded
after four days. Thereafter accused was arrested after two
days. There was no panchnama about his arrest and in
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addition thereto, there was no panchnama of seizure of the
clothes of the accused. Thus, it is seen that the accused was
not acquitted only on the ground that there was no
panchnama regarding his arrest or seizure of clothes, but he
was acquitted on many other grounds. PW 2 Sunanda
stated that she heard shouts of the appellant and the
deceased at noon and at about 5.30 p.m., she saw the
deceased lying dead in the house of the appellant and the
appellant trying to run away. Sunanda has immediately
lodged the F.I.R on the very same day at 8.05 p.m. Her
statement was recorded on the very same day in which she
has stated all these facts. No omission or contradiction in
relation to these facts have been brought on record. Thus,
the decision in the case of Mahesh Aher (supra) would be of
no avail to the appellant.
11. Looking to the evidence on record, we are of the
opinion that the prosecution has proved beyond reasonable
doubt that the appellant committed the murder of his wife
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Kamal. Thus, we find no merit in the appeal. The appeal is
dismissed.
[ A.M. BADAR, J. ] [ SMT. V.K. TAHILRAMANI, J. ]
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